Gibbons Law Alert

Gibbons Law Alert Blog

On October 3, 2012

We previously reported on the First Appellate Department’s refusal to stay Judge Sciarrino’s order that Twitter turnover criminal defendant, Malcolm Harris’s tweets, which will allegedly contradict his defense in a criminal action. Facing the threat of a contempt order, Twitter produced to Judge Sciarrino the tweets in question on September 14. However, Harris previously brought an Article 78 proceeding against Judge Sciarrino (In the Matter of Harris v. Sciarrino, Index No. 103569/12) and filed a motion seeking a stay of Judge Sciarrino’s order that the tweets be produced to Judge Sciarrino for in camera review before production to the District Attorney. On September 27, 2012, Judge Huff denied Harris’s motion to stay enforcement of Judge Sciarrino’s order pending the resolution of the Article 78 proceeding. Although Harris argued pursuant to CPLR 7803 that Judge Sciarrino had acted outside of his jurisdiction, the District Attorney successfully countered that criminal defendants may not “interrupt their prosecutions to launch what is in essence a pre-conviction collateral attack using Article 78 as a vehicle.” Stay tuned for further updates….

New Requirements for NJ Employers and for Employers Conducting Business in Newark, NJ

by Gibbons P.C.

Posted in Discrimination

On October 3, 2012

Beginning November 12, 2012, the State of New Jersey will require employers to post a new “equal pay” notice in the work place, to provide the notice to employees and to obtain an acknowledgment of receipt. Effective November 18, 2012, the City of Newark will impose restrictions on employers conducting hiring in the City with regard to the use of criminal background checks for job applicants.

Protecting Fashion Designs: The Innovative Design Protection Act of 2012

by Christopher H. Strate

Posted in Copyright

On October 2, 2012

Just as design patents for smart phones and yoga pants are recently making headlines, the Senate Judiciary Committee has approved a bill, S. 3523, entitled the Innovative Design Protection Act of 2012, which would extend copyright-like protection to fashion designs (the “Act”). The protection of the proposed Act would extend to “fashion design[s],” defined as the appearance as a whole of an article of apparel including men’s, women’s or children’s clothing, including undergarments, outer wear, gloves, footwear, headgear, handbags, purses, wallets, tote bags, belts and eyeglass frames. Given that many other countries already have laws that provide design protection for fashion design, the passage of the Act has the potential to help encourage and sustain the U.S. fashion industry.

NJ Supreme Court Clarifies Nexus Standard Under Spill Act

by William S. Hatfield

Posted in Environmental and Green Issues

On September 28, 2012

In NJDEP v. Dimant, et al., the Department filed suit under New Jersey’s Spill Compensation and Control Act (the “Spill Act”), alleging that the defendant, Sue’s Clothes Hanger, Inc. (“Sue’s”), a dry cleaning business, was responsible for damages related to groundwater contamination on various properties in Bound Brook. The sole evidence supporting DEP’s claim for damages against Sue’s rested on a pipe that was found dripping perchloroethylene (PCE) onto a driveway in the late 1980s. The trial court judge ruled that the DEP had not sufficiently proved a nexus between the PCE dripping from Sue’s pipe in the 1980s and the groundwater contamination at issue. The plaintiffs appealed.

Will the Supreme Court Weigh in on Reverse Payments in ANDA Cases — Revisited

by Charles H. Chevalier

Posted in Patent

On September 28, 2012

We have written previously on numerous developments concerning reverse payments in Hatch-Waxman litigation settlements (i.e., payments made by branded pharmaceutical patent holders to generic challengers to postpone market entry of proposed generic products). Earlier this month, we reported that Merck & Co. had filed a petition for a Writ of Certiorari seeking to challenge the Third Circuit’s decision in In re K-Dur Antitrust Litig. holding that reverse payments are prima facie evidence of an antitrust violation.

Declaratory Judgment Suit Over ROHAN Trademark

by Gibbons P.C.

Posted in Trademarks

On September 27, 2012

D’Artagnan Trademarks LLC, (“DT”) recently sued the Saul Zaentz Company (“SZ”) in the District of New Jersey regarding the trademark ROHAN. In December 2011, DT filed a trademark application for ROHAN in connection with the sale of poultry, namely, duck. The PTO approved the application and SZ opposed its registration when it published for opposition in late March. SZ alleged that it has exclusive rights to certain trademarks (the “Marks”) derived from the trilogy of books known as “The Lord of the Rings,” by J.R.R. Tolkien. Readers might recall that in the books, “Rohan” is a fictional realm within the fantasy world of the stories. SZ alleges it owns federal trademark registrations for ROHAN, RIDERS OF ROHAN and ROHAN NUTRITION, relating to animal feed and feed supplements for horses, plastic figurines for use with table top hobby battle games, and website services about computer games. SZ has a number of licensees using these marks.

Pennsylvania Supreme Court Concludes That Dissenting Shareholders’ Post-Merger Recourse Is Limited to Judicial Appraisal

by Gibbons P.C.

Posted in General Litigation

On September 26, 2012

As discussed in a previous post, the Third Circuit’s August 2012 ruling in Mitchell Partners, L.P. v. Irex Corp. predicted that the Pennsylvania Supreme Court would “permit a post-merger suit for damages based on the majority shareholders’ breach of their fiduciary duties.” As a result, the Third Circuit concluded that Pennsylvania’s appraisal statute did not preclude dissenting minority shareholders who are “squeezed out” in a merger from seeking remedies beyond the appraisal remedies provided in the statute. However, on certification, the Pennsylvania Supreme Court concluded that minority shareholders who oppose a merger have no recourse — in the absence of fraud or fundamental unfairness — other than to seek judicial appraisal of the value of their post-merger shares.

Third Circuit Deflates Run-Flat Tire Class Action Against BMW and Bridgestone

by Gibbons P.C.

Posted in Class Action Defense

On September 21, 2012

In Marcus v. BMW of N. Am, LLC, et al., the Third Circuit vacated an order certifying a class of owners and lessees of various model-year BMW vehicles equipped with run-flat tires, finding the class definition impermissibly vague, the proposed class not ascertainable, and otherwise rejecting certification on numerosity and predominance grounds. Although the Court remanded for further proceedings, it will likely be very difficult for the plaintiff to have a class certified in light of the Court’s directives for the necessary proof.

“Trust me, I know what I’m doing!” – Court Outlines Perils of Custodian Self-Collection and Inadequate Keyword Searches

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On September 21, 2012

In a recent ruling, United States Southern District Judge and e-discovery authority Shira Scheindlin, of Zubulake and Pension Committee fame, held that various government agencies had failed to adequately design searches for responsive electronically-stored information. While the case, National Day Laborer Org. Network et al. v. U.S. Immigration and Customs Enforcement Agency, et al., 2012 U.S. Dist. LEXIS 97863 (S.D.N.Y. July 13, 2012), deals largely with searches in the context of the Freedom of Information Act (“FOIA”), Judge Scheindlin noted “much of the logic behind . . . e-discovery searches is instructive in the FOIA search context because it educates litigants and the courts about the types of searches that are or are not likely to uncover all responsive documents.”

Inter Partes Review Under AIA is Underway …

by Gibbons P.C.

Posted in Patent / USPTO

On September 21, 2012

As we previously discussed, the new inter partes review (IPR) procedures went into effect September 16, 2012, along with several other significant changes. The IPR procedure replaces the previous inter partes reexamination and applies to any patent issued before, during, or after September 16, 2012. This removes one of the hurdles of the previous inter partes reexamination which applied only to applications filed after November 29, 1999. The PTO will only accept a valid IPR petition nine months after a patent issues. As in inter partes reexamination, the IPR permits the petitioner to challenge claims as being anticipated or obvious in view of published prior art references. Also, like the previous inter partes reexamination, IPR carries with it an estoppel effect barring the IPR petitioner from asserting the invalidity of any challenged claim on the same arguments and references in any district court action.